Wakaya Ltd v Nusbaum [2012] FJHC 838; HBC256.2010 (3 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 256 of 2010

BETWEEN:

WAKAYA LIMITED
PLAINTIFF

AND:

MARSHA NUSBAUM.
1ST DEFENDANT

AND:

KENNETH CHAMBERS
2ND DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Ritesh Naidu for the Plaintiff
Mr. Hurare W for the 1st Defendant
2nd Defendant in preson

Date of Hearing: 5th and 24th of June, 2011
Date of Ruling: 3rd February, 2012

RULING

1. INTRODUCTION
   

1. Plaintiff filled this action against the 1st and 2nd Defendants by way of writ of summons for alleged damages incurred for intended burial on a land in Wakaya Island. The Plaintiff has also sought an interim injunction preventing the burial in a land that is situated in Wakaya Island. Though the Plaintiff was able to obtain an interim injunction for the High Court on 6th September, 2010 the said decision was unanimously overturned by the Court of Appeal on 15th March, 2011 and the matter was referred to the Master for the assessment of damages that incurred to the Defendants by obtaining the said interlocutory injunction. The Plaintiff has obtained leave to appeal of that decision out of time and the appeal to the Supreme Court has not been determined yet.
   
2. On 23rd September, 2011, the Defendants have filled their statement of Defence and in that the Defendants have pleaded ten causes of actions against the Plaintiff. They are Fraud (unconscionable conduct), Trespass, interference with access to foreshore,Restrictive covenant, caveat without reasonable cause, abuse of process, slander and defamation, interfering with burial arrangements, Derogation for grant of fee simple absolute in possession, and conspiracy.
   
3. A reply to the Defence and Counterclaim was filled on 10th November, 2010 and a reply to the counterclaim was also filled on 1st December, 2010
   
4. By a notice of motion dated 12 May 2011 the defendants Marsha Nusbaum and Kenneth Chambers have applied for an order for specific discovery against the plaintiff in terms of the Order 24 rule 7 of the of the High Court Rules of 1988.
   
5. The Defendants have also sought an unless order for non-compliance with the discovery and sought to strike out the defence to counter claim on that basis.
   
6. At paragraph 3 of the affidavit in support of the application the 2nd defendant seeks discovery of 34 documents which are described as follows:
   
   • (1) Email from Renee Lal to 1st defendant mentioned in exhibit MTT14;
     
   • (2) Jamnadas & Associates trust account cheque stub dated on or about 4 November 2010 payable to Pacific Chambers in the sum of $350;
     
   • (3) Jamnadas & Associates accounting records for attending to service of the plaintiff's reply to counterclaim on or about 4 November 2010;
     
   • (4) Email correspondence and file notes of conversations or meetings with either defendant relating to the matters in question in this action;
     
   • (5) Affidavit of Dilip K Jamnadas concerning his solicitor client relationship with the 1st defendant, and the claim for "rates" faxed to Edward Daniel Nusbaum on 10 February 2006 at 10.39 am;
     
   • (6) Correspondence and file notes of all conversations and meetings of the directors, contractors, agents or employees of the plaintiff relating to the matters in question in this action;
     
   • (7) Correspondence and file notes concerning all legal advice given by the plaintiff's solicitors Jamnadas & Associates to the 1st defendant relating to the matters in question in this action;
     
   • (8) 2010 balance sheet and profit and loss account for the plaintiff with all supporting asset valuation documents;
     
   • (9) Certificates of titles for all land on Wakaya Island held by the plaintiff;
     
   • (10) Documents correspondence files and file notes relating to an agreement for sale and purchase dated 5 July 1985 between plaintiff and Edward Daniel Nusbaum;
     
   • (11) Nusbaum to Nusbaum matrimonial property settlement files;
     
   • (12) Documents and files relating to the solicitor/client relationship between the 1st defendant and Jamnadas & Associates;
     
   • (13) Documents and files relating to High Court proceedings in Rosenblatt v Wakaya Ltd and any other proceeding wherein the plaintiff is/ was a party relating to matters of a similar nature to questions in this action.
     
   • (14) Documents or files relating to subdivision or amalgamation of lots on Wakaya Island, particularly correspondence between the plaintiff and the Fiji Islands Government concerning compliance with subdivision consent conditions; historic places (including burial; grounds both indigenous and colonial settler) on Wakaya Island' dedication of roads and public reserves; and IUCN recreation reserve in Wakaya Lagoon.
     
   • (15) Documents, correspondence, files or notes relating to proposed creation of a local authority for Wakaya Island;
     
   • (16) Documents, correspondence, files or notes relating to plaintiff charging land rates, utility charges or service charges against freehold properties on Wakaya Island;
     
   • (17) Legal advice relating to entitlement to foreclose for "rates" arrears;
     
   • (18) Rates recovery agreement between plaintiff and Jamnadas & Associates with associates accounting records;
     
   • (19) Documents, correspondence, file notes and files concerning foreclosure by the plaintiff for non-payment of "rates" on Wakaya Island;
     
   • (20) Correspondence and file notes relating to the defendants and their relations with the Ministers of Health and of Lands and the Department of Immigration;
     
   • (21) Documents, correspondence, files and files notes relating to the defendants and the publication by or on behalf of the plaintiff of press releases from August relating to the matters at issue in this action;
     
   • (22) Marketing material for properties on Wakaya Island together with all correspondence and file notes relating to sales of land on Wakaya Island;
     
   • (23) Timesheets, payment vouchers, file notes and correspondence relating to the Police presence and to the extra security at Wakaya Island from 21 August 2010;
     
   • (24) Correspondence and file notes of all conversations or meetings between the plaintiff and University of the South Pacific since 21 August 2010;
     
   • (25) Mobile telephone records for all employees or agents of the plaintiff for the period 21 August 2010 to 6 September 2010;
     
   • (26) Correspondence and all file notes of conversations or email between the plaintiff and Francis Christofferson from 21 August 2010 to date.
     
   • (27) Documents relating to or containing any assignment from Edward Daniel Nusbaum to the 1st defendant on or about 2007;
     
   • (28) Legal advice relating to the matters in question in this action;
     
   • (29) Accounting records for capital works expenditure withi 1 mile of the defendants property on Wakaya Island;
     
   • (30) Copy caveat against dealing lodged by the plaintiff on 1 September 2010 against the defendants property at lot 6 DP 4648 on c/t 27687;
     
   • (31) Legal advice file notes correspondence relating to the caveat against dealing mentioned at paragraph 30 above;
     
   • (32) Correspondence with Television New Zealand;
     
   • (33) Correspondence with Patrick Todd;
     
   • (34) Timesheets for plaintiff's staff engaged on Wakaya Flyer' on 27 August;
     

On 22 June 2011 the plaintiff filed a supplementary list of documents disclosing a list of 17 documents.

7. The plaintiff objects to this application on the following grounds:
   
   • (i) The defendants have not satisfied the test for discovery. They have not made out a case for relevance of most of the documents they seek discovery of.
     
   • (ii) The defendants have not identified with precision
     
   • (iii) Legal professional privilege.
     
   • (iv) The defendants have not made out a prima faacie case for the existence of documents (which according to the plaintiff does not exist.)
     

2. LAW AND ANALYSIS
   

8. Order 24 rule 7 of the High court Rules states:
   

"7. (1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(2) An order may be made against a party under this rule not withstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.

(3) An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from who discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter."

9. And Order 24, rule 8 states:
   

"8. On the hearing of an application for an order under rule 3 or 7, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs."

10. The application must be supported by an affidavit stating the requirements contained in the Order 24 rule 7(3) and the said requirements are as follows
    
    1. To the belief the documents or the class of documents specified or described are in possession, custody or power of the party whom the discovery is sought, or at some time in the past.
       
    2. It relates to one or more of the matters in question.
       
11. The affidavit in support sworn by the 2nd Defendant at paragraph 3 states as follows

'I verily believe that all the following documents and class of documents relate to one or more of the matters in question in this action can are therefore discoverable by the plaintiff.'

12. The said affidavit in support further at paragraph 4 states as follows
    

'I verily believe that the plaintiff or its solicitors Jamandas & associates has had or at some time had, in their possession, custody or power in the ordinary course of business, the documents or class of document, specified or described in paragraph 3 hereof and if not now in their possession, custody or power, they can say when they parted with it and what has become of it.'

13. In the paragraph 3 the 2nd Defendant states that the documents he sought are discoverable by the Plaintiff, but in the paragraph 4 he states that the said documents to his belief were with the Plaintiff or its solicitors Jamandas & Associates.
    
14. The notice of motion filled on 12th May, 2011 seeking discovery state as follows

'a. The Plaintiff shall within 14 days serve on the defendant an affidavit verifying the list of particular documents or classes of document described in the affidavit of Kenneth Chambers filed therein, stating whether any document specified or described or any class of document so specified or described in, or has at any time been in its possession, custody or power and if not then in its possession custody or power, when it parted with it any what has become of it.'

15. Supreme Court Practice (1999) at p 471 24/7/2 state as follows
    

'....the present rule an application may be made for an affidavit as to specific document or classes of documents. This must be supported by an affidavit stating that in the belief of he deponent other party has or has had prima facie case is made out for (a) possesson, custody or power and (b) relevance of the specified documents (Astra National Production Ltd v neo Art productions Ltd [1928]W.N. 218. This case may be base merely on the probability arising from the surrounding circumstances or in part on specific facts deposed to. See too Berkeley administration v McClelland [1990] F.S.R. 381 where at p 382 the Court restated the principles as follows;

(1) There is no jurisdiction to make an order under RSC O24 r 7 for the production of documents unless

(a) there is sufficient evidence that the documents exist which the other party has not disclosed.

(b) the document or documents relate to matters in issue in the action

(c) there is sufficient evidence that the document is in the possession, custody or power of the other party.

(2) When it is established that those three prerequisites for jurisdiction do exist, the court has discretion whether or not to order disclosure.' (emphasis added)

16. The Plaintiff's affidavit in support falls short of those above requirements in the following one or more
    
    1. It has failed to adduce sufficient evidence that each document exists which the other party has not disclosed this may be excused as certain documents and their custody have been admitted by the Plaintiff but it has categorically denied the existence of some of the documents. In any event since the affidavit in support must contain averments as to their existence and mere belief is not sufficient as per the above judgment since they are prerequisites and only upon the proof of the said three prerequisites that the court obtains jurisdiction to deal with it and can exercise its discretion. So, some evidence of as to why such belief was arrived at by the applicant is needed to be sworn in the affidavit in opposition.
       
    2. The document or documents should relate to matters in issue in the action and that has to be anerred in the affidavit with particulars as to the relevancy. This has been completely ignored by the Defendant's affidavit in support. The Defendants in their counterclaim has claimed for 10 causes of actions against the Plaintiff. Apart from that I have been entrusted with the task of assessing the damages incurred to the Defendants by the Court of Appeal, due to the interlocutory injunction obtained by the Plaintiff that ultimately resulted the burial of the dead body of the son of 2nd Defendant, contrary to the wishes of the 2nd Defendant. The court of appeal directed me to assess the damages while dismissing the interlocutory injunction on the basis of locus standi of the Plaintiff to seek such an order. I have this matter before me for assessment of damages and there are ten counter claims in the statement of defence of the defendants. So, it is needed to relate to these documents to each of the claim and or to the assessment of damages and also explain the relationship in detail. Without it the court would not be able to make an order as to the relevancy of the documents.
       
    3. There is no sufficient evidence in the affidavit in support swearing that each of that the document is in the possession, custody or power of the Plaintiff from whom the Plaintiff is seeking discovery in terms of the notice of motion seeking discovery.In the notice of motion the Defendant is only seeking discovery against the Plaintiff and stated 'The Plaintiif shall within 14 days serve on the defendant' the documents described in the affidavit in support, but in contrast to this the affidavit in support at paragraph 4 stated that 'I verily believethat the plaintiff or its solicitors Jamandas & associates has had or at some time had, in their possession, custody or power in the ordinary course of business.'
       
17. No affidavit evidence was led on this an especially on the (ii) above, considering that there are 10 alleged causes of actions alleged against the Plaintiff in the counter claim filled by the Defendants and also there is a pending hearing for assessment of damages as per the direction of the Court of Appeal, I need to be satisfy as to the relationship of the documents to the issues before the court. The matter is complicated and each document needs to be relate to one or more issues and that has to be specified distinctly in the affidavit in support and also that has to be swon evidence of the appliants, to satisfy the prerequisits in order to exercise discreption of the court to order discovery.
    

100. CONCLUSIONS
     

18. There are three prerequisites as laid down in the case of Berkeley administration v McClelland [1990] F.S.R. 381 and upon the proof of the said three prerequisites only the court will obtain the jurisdiction to exercise its discretion as to an order for discovery as stated in the said judgment.
    
19. Since the affidavit in support has not complied with the mandatory provision of the law as contained in the Order 24 rule 7 I will dismiss this application for discovery, and the cost of this application will be cost in the cause for the Plaintiff.
    

4. FINAL ORDER
   

1. The motion for discovery filled by the 2nd Defendant on 12th May 2011 is dismissed.
   
2. The cost of this application will be cost in the cause for the Defendant.
   

Dated at Suva this 3rd day of February, 2012.

Mr. Deepthi Amaratunga
Master of the High Court
Suva